Kahan v. 960 Franklin LLC

2025 NY Slip Op 30134(U)

• Court: New York Supreme Court, Kings County
• Decided: January 6, 2025
• Docket: Index No. 536153/2022
• Status: Unpublished

Opinion

Kahan v 960 Franklin LLC 2025 NY Slip Op 30134(U) January 6, 2025 Supreme Court, Kings County Docket Number: Index No. 536153/2022 Judge: Leon Ruchelsman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: KINGS COUNTY CLERK 01/09/2025 01:27 PM INDEX NO. 536153/2022 NYSCEF DOC. NO. 284 RECEIVED NYSCEF: 01/09/2025

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS : CIVIL TERM: COMMERCIAL ;8 -----.-. ------- ------: -----. - . -·- ··-- .. - ·--.-:-x HAIM KAHAN, Plaint iff, Decisio n and order - agains t - Index No. 536153 /2022 960 FRANKliIN LLC and DARYL HAGLER, January 6, 2025 Defend ants, ----~-------- --------- -------- ----- -- X PRESENT: HON. LEON RUCHELSMAN Motion Seq. #8 & #9

The plaint iff has moved seeking summar y judgem ent. The defend ants have cross-m oved seeking summai:'y jµdgern ent or

alterna tively seek furthe r discov ery. Th~ motion s have .been oppose d re_spec ti vely. Papers were submit ted by the parties and

after review ing all the argume nts, this c9urt now makes the

followi ng determ ination .

The defend ant Hagler is a member of CDK Real Estate LLC

which is the Sole owner of defend ant 960 Frankl in LLC, On July 19, 2022, 960 Frankl in LLC entered into contra cts to purcha se two

parcel s of land for $42,50 0,000 and $40O,qo o respec tively. Down paymen ts were made 0£ ten percen t for each parcel . Therea fter, non-pa rty Chesky Weisz approac hed the pla:.i;n tiff to invest in a

real estate deal. On August 9, 2022 the plaint iff investe d and

thus wired $4,500 ,000 to an escrow agent ~ased.u pon

~epreS entatio ns of Weisz~ The next day, ~agler assigne d his.

rights ih 960 Frankl in LLC to an entity O\o.1:ned by C.nesky Weisz

called 960 Frankl in Owner LLC. [here.in after! the 'Weisz entity '] .

The assignm ent was designe d to take place\ in two stages . First,

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the Weisz entity would provide a down payment of $4,500,000 and

acquire a 51% interest in 960 Franklin LIJC and the balance of

$49, 000,. 000 would be paid at the closing iartd the Weisz entity

would then acquire the remaining 49% inte:rest in 960 Franklin

LLC. Hagler negotiated an extension of t;he closing for an

additional down payment of $4,275,000. Ainehdments to the

contracts were executed whereby an extens!ion of the closing was

agreed upon following an additional deposlit of $4,275,000. Thus,

on August 10, 200 Hagler assigned51% cif his rights in 960

Franklin LLC to the Weisz entity in exchaing~ for $53,500, ODO and

directed the escrowee agent to transfer $4,500,000 to the seller

-of the parcels in exchange for the extensiion of the closing date,

Further, the Weisz entity was required toi pay ten million dollars

by November 1, 2022 to be applied to the purchase price.

Concerning the assignment, Hagler stated that ''if the Weisz

Entity failed to make the $10 million payment by the required

deadline, (i) it would be deemed in defauJt of the Assignment

Agreement, (ii) my "Reversionary Right"' to rescind the 51'(;

Assignment Agreement would be deemed autoi:natically exercised,

(iii) it would forfeit any interest in 960 Franklin, {iv) I would

be permitted to retain the $4.5 million Down Payment as

liquidated damages, c;nd (v) I; acting thi:pugh. 960, Fran.klin, would ' be permitted to close directly with the Underlying Sellers for

the purchase .of the Property" ( ~ , A.ff ir~ation of Qaryl Hagier, '

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!21 [NYSCEF Dbc. No. 116]).

Prior to the closing, on October 28, 2022 the plaintiff ;

Kal1an sent a letter to Hagler informing h!im that he had provided

the four and a half million dollar deposiit and that Weisz had

fraudulently represented the nature of th:e investment and the

pending transaction. That letter went un:addressed.

On November 2, 2022, the day of thej closing, the Weisz entity filed for bankruptcy and failed td furnish ten million

dollars pursuant to the assignment agreement. At that juncture Hagler, through 960 Franklin LLC closed o)'l the properties in

efforts "to prevent the loss of the Depos'its" (see, Affirmation

of Daryl Hagler, !44 [NYSGEF Doc. No. 116J). Hagler explained

that upon the default of the Weisz entity, Weisz "automatically

forfeited any interest in 960 Franklin, 1 was entitled to retain

the Down Payment as liquidated damages, abd I was expressly

permitted to Close title Under the Uhderrying Sales Contracts and

purchase the Property from the Underlying! Sellers (through 960 Franklin)" (see, Affirmat.ion of Daryl Hag!ler, 9[43 [NYSCEF Doc.

No. 116]). Thus, Hagler utilized Kahan' si fµnds to salvage the

deposits made including Hagler' s own depo!sit.

This lawsuit was filed and Kahan a.!sserted two claims, for

unjust enrichrnie:nt and c:omrersion. The co~plaint alleges that

Hagler unjustly ut:Lli.zed Kah.ah' s investme~t funds and such funds

should be retµrned. Each party has essen~ially .moved se.eking '

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summary judgement.

Conclusions of Law ;

Where the· material facts at issue i!n a case are in dispute

summary judgment can.riot be granted CZucke:rman v. City of New

York, 49 NYS2d 557, 427 NYS2d 595 [1980] )!. Generally, it is for

the jury, the trier of fact to determine ithe legal cause of any

injury, however; where only one conclusio!n may be drawn from the

facts then the question: of legal cause maiy be decided by the

trial court as a matter o:E law {Marino v. Jamison, 189 AD3d 1021,

136 NYS3d 324 [2d Dept., 2021) .

There is a dispute why the funds of :Kahan were wired and it

is c;urious that there is no contemporanedus memorandum

delineating the nature of the investment.! In any event both the

plaintiff and defendant each assert that there are no questions

of fact and that each is entitled to su~ary relief.

Hagler asserts the funds were given because "the Weisz Entity

needed to pay for the Assignment Agreemen:t to become effective

and that would be immediately released tu the Underlying Sellers' counsel to ,secure a deal to acquire the p'.roperty through 960

Franklin .:from the Underlying Sellers" (Memorandum in Opposition,

page 2 [NYSGEF Doc. No. 2 69] ) . Thus, Hagler insists Kahan was

fully aware o:E the assignment agreement ahd by in:yestih.g funds

with Weisz, Kahan. canriot assert greater r:ights that Weisz . Thus, by dint. of the failure. of Weisz to satis.;Ey the. conditi.ons of the

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assignment agreement, Kahan too waived any rights pursuant to the

agreement and essentially lost his investment. Ka.hart argues he ;

did not know of such agreement and investied funds thinking there

would be a direct purchase of the propert1y. consequently Hagler

utilized his funds unjustly and such funqs must be returned.

First, the voluntary payment doctrinje do.es not act to bar

the plaintiff's claims sought here. That! common law doctrine

bars recovery of payments voluntarily made with full knowledge o.f

the facts in the al::isence of fraud, duress or a material mistake

in law or fact (Dillon v, U-A Columbia Cablevision of Westchester

Inc., 100 NY2d 525, 760 NYSZd 726 [2003], Overbay LLC v. Berkman.

Henoch, Peterson. Peddy & Fenchel P.C., 185 AD3d 787, 128 NYS3d

56 [2d Dept., 20201) . The rationale fo:r the rule is the simple

truism that "when a party intends to reso;rt to litigation in

order to resist paying an unjust demand, :that party should take

its position at the time of the demand, and litigate the issue

before, rather than after, payment is mad!e;' ( see, Gimbel Brothers

Inc .• v. Brook Shopping Centers Inc,, 11ff Ab2d 532, 499 NYS.2 435

[2d Dept., 1986]). In Peyser v. City of :N·ew York, 70 NY 497, 25

sickles 4 9 7 [ 18 7 7 J the court expanded upo:n that reason and

explained that ''the reason of this principle is, that a person

shall not be permitted, wi.th the knowledgje that the demand made

upon hiin is illegal and unfounded, to mak;e payment without resistance, wh$re re.sistance is lawful a.n;d possible, and

.5

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afterwards to choose his own time to bring an action for

restoration, when, perchance, his_ adversary has lost the evidence ;

to sustain his side" ( id) . Other j u:risd~ctions are in aq:ord.

Thus, in Putnam v. Time Warner Cable of Southeast Wisconsin Ltd.

Partnership. 649 NW2d 626, 255 Wis2d 447 }supreme Court of

Wisconsin 2 022] the court '3Xp1ained ''ther:;e are two primary

reasons why courts have adopted the volu~tary payment doctrine. First, the doctrine allows entities that !receive payment for

services to rely upon these funds and to :use them unfettered in

future activities ... second, the doctrine :operates as a means to

settle disputes without litigation by requiring the party

contesting the payment to notify the payee of its concerns. A.fte.r

such notification, a payee who has acted iwrongfully' cari react to rectify the situation'; (id) .

However, as noted, the doctrine doe~ not apply when the

payment is made under a mistake (Caro Capital LLC v. Koch, 653

F. $upp3d 108 [ s. D. N .• Y. 2023]) . Further, !the doctrine is not applicable where allegations '6£ fraud arid misrepreseritatiori exist

(Pike v. New York Life Insurance Company,: 72 AD3d 1043, 901 NYS2d

7 6 [2d Dept., 2010]} , Further, the Resta:tement (Third) of

Restitution and Unjust Enrichment §27 [2011] entitled "claimartt's

Expectation O·f Ownership" states that "±4 the. claimant mak,es expendit:ures to maintain, improve, or add value to property that

the claima:n:t rei3:sonab1y expects to retairi or to acquire, and

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(because such expectation is frµstrated) another person becomes 1

the unintended beneficiary of the claimant's expenditure, the

claimant is entitled to restitution from ~he other as necessary

to prevent unjust enrichment" (:Ld). The 'comment to this section

explains that "the common feature of the pases within this

section is the unexpected turn 0£ events that causes another

person to enjoy the fruits of an invesi;:mept frQm wliich the claimant had reasonably expected to benefit himself" (id).

In this case, Kahan asserts he ihve:sted furids with Weisz to

purchase the property directly from the o~ner and was unaware of

any agreement between Weisz and the defendant (see, Affirmation

of Haim Kahan, ']['][4, 18 [NYSCEF Doc. No. 2!11]). That contention

is disputed. Thus, there are surely ques;tions of fact whether

the funds we:re provided by the plaintiff :under a mistake or based

upon misrepresentations which would questiion the applicability of

the voluntary payment doctrine. These questions of fact

foreclose the doctrine's utility at this !time.

Considering the motions seeking summary judgement, Hagler

presents twelve reasons why the plaintiff's motion must be denied

and in fact the court should search the r;ecord arid award summary

j udgernent to the def endaht. Each of thes;e arguments will be

considere.d i,n turn ..

First, Hagler argues that Kahan has: admitted he fqrwi3rded,

funds to. Weisz.

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Second, Hagler asserts that Kahan' si argument he thought a

contract would be negotiated by counsel cbncerning his, down

payment and an eventual purchase cannot cjreate any questions of

fact. Hagler insists that "if Kahan truLy believed that the bown

Payment would not be released until some ;contract "acceptable to

[hi:s] lawyers" was negotiated with Weisz :(Kahan.SJ.Aff. '1(8),

there would have been no reason for Kahan! to fund the deposit

until that contract was negotiated" {emph:asis in original} (see,

Memorandum of Law, page 2 [NYSCEF Doc. No;. 269]) .

Third, the defendant's argue the ab'.sence of any writing of

such a proposed contract surely undermine:s .i,.ts existence and in

fact negates: any such belief at all. Hagter argues that "there·

is no such record because Kahan did not possess that

belie.f. Rather, he knew that he was S:ilen:tly partner in~ with

Weisz by funding the Weisz Entity's Down iPayment to make the

Assignment Agreement effective" (see, Memorandum of Law, page 3

[NYSCEF Doc. No. 269]). Moreover, the defendant's dismiss

Kahan' s "story" by asserting i t is -supporting exclusive'ly by

Kahah's own self-serving affidavit.

Fourth, Hagler argues there is evidence Kahan knew he was•

forwarding funds to Weisz to support the agreement between Weisz

and Hagler anq there are. no que.stions in :this regard. Thus, o,n ' August 8, 2022 an email. was seht by $hia :Weisz, the son of Chesky

We.isz to the. plaintiff. and. his .. .assoc.iate,,•:I outlining t.h.E! structure

B

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of the proposed investment. The email details the total amount

needed to secure the deal, namely forty:-f!ive million dollars and

that Kahan would invest five million dolfars as a: down payment

which included plans for soft costs; The! email further outlines

that Kahan would provide another twenty n\illion dollars at

closing and that they woulci "try and rais:3 together'' the

remaining twenty million dollars (see, EmF3-il, at Exhibit 7 [NYSCEF Doc. No. 241]). The following day Kahan confirmed the

contents of the email. Hagler argues thi:s email exchange proves

that Kahan was aware of the assignment ag:reement, with Hagler

because it is "urtbelievabl,e'' for Kahan tb argue otherwise.

Further, Hagler argues, it is really irre1evant whether Kahan was aware of the assignment agreement since such agreement existed

and Kahan is bound by his "partner" Weisz:.

Fifth, Hagler argues that Kahan performed and in fai::::t wired

funds pursuant to the instructions from: Weisz. Moreover; two

weeks later Kahan opted to purchase the sn.ares of Weisz and eventua.lly paid Weisz two million dollarff in furtherance of this

buyout before defaulting on any further payments. Hagler insists

that Kahan must have known of the assignm~nt agreement. Hagler asserts that "to contend otherwise would }ilso ·mean that he did

not know what. he was buying from. .Weisz wh~n he exercised his

option and paid Weisz yet another $2 million to. buy him out, and

thereby committed .$.6.5 million to the dea'.1, No reasonable jury

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could believe that Kahan did not know what he was buying from.

Weisz .( i . e . , the abi 1 ity to close under the Assignment Ag .re emen t ;

exclusively through the Weisz Entity) sin~e Weisz's rights and

obligations derived only from the Assigrim~nt Agreement~the sarri.e

agreement that governed the Down Payment ~hat Kahan arranged to

pay for the Weisz Entity" (see, Memorandufll Of Law, page 7 [NYSCEF

Doc. No. 269]) .

Sixth, Hagler insists that Kahan was: aware of the assignment

agreement because Kahan's production included a copy of the

agreement.

Seventh, Hagler argues that Weisz has sued Kahan in a

separate action entitled WeiSz v. Kahan, Index Number 524709/2023

and Kahan never counterclaimed seeking a return of the $4.5

million dollars he gave Weisz. Hagler insists that the failure

to seek a return of those funds can only pe an implicit admission

by Kahan that he was aware of the assignment agreement between

Weisz and Hagler and thus could not in go9d faith seek recovery

of thcise funds.

Eighth, Hagler argues it is "preposterous" that Kahan would

not have been aware of the assignment agr~ement because he is a

·soprristicated real estate investor.

Ninth, Hagler maintains that Shia weJsz, the son of Chesky Weisz submi tte.ct an af f ictavi t and. confirrnect that Kahan was fully aware of the assignment agreement arid consented to its terms.

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Further, Weisz also has submitted affidavits confirming Kahan's

knowledge of the assignment agreement.

Tenth, Hagler argues that the origirial complaint filed by

Kahan, contains an admission he was aware! of the assignment

agreement. The original cotnpla.irit states that based upon the

representations of Weisz, Kahan and Weisz, would purchase property

and that 11 0n or about Allgust 9, 2022, K:ahp-n wired $4,500,000 (the

"Deposit") directly to Abrams Fensterman for the purpose of

funding 960 Franklin's down payment to puJ::chase . the Property . and

participating as a partial owner of the Property" (.§.§.§., Verifieci

Complaint, 'I[ll [NYSCEF Doc. No. 1]).

Eleventh, Hagler argues that Kahan lied about when he first

became aware of the assignment agreement.: Kahan has represented

he first became aware of ~t shortly befor~ October 28, 2022 when

Kahan notified Hagl~r of his involjement ~nd his £ears he had

been defra:ucted by Weisz. Hagler now argues that Kahan had been

awa:re o.f it for at least a month beforehapd when it had been sent

to him at the end of. September 2022.

Twelfth, Hagler argues that ti1e law$uit between Weisz and

Kahan reveals that Kahan admitted no improprieties or

misrepresentations were made qy Weisz at all. Thus, Hagler argues the above facts ~emonstrate Kahan cannot obtain summary judgement. Mor.eover, the above arg.uments

eliminate any questions .of fact and summafy juq.gement should be

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awarded ih favor of Hagler.

These arguments will now be address;ed. A judicial

admission is any act or statement made dulring the course.of a

judicial proceeding which essentially con;cedes a disputed fact

(..§..§.§., Jones v. Morehead, 68 US 155, 17 L.-~d 662, 1 Wall 155

[1863]). Thus, a statement in a pleadingj admitting ownership of

a vehicle is an admission of such ownersh~p and "conclusive" evidence of that fact (Zeqa:rowicz v. Ripatti, 77 AD3d 650, 911

NYS2d 69 [2d Dept., 2010]) . Therefore, a:: formal judicial

admission is a substitute for evidence anp. absolves a party with

the need to present evidence that is the substance of the

admission (see, State Farm Mutual Auto Insurance Company v.

Worthington, 405 F.2d 683 [8 th Cir, 1968] )i. To· be Considered a:

formal judicial admission the statement or act must be clear,

uneq\Ji vocal and deliberate ( Rahman v. Smith, 40 A.D3d 613, 835

NYS2d 404 [2d Dept., 2007]). In this cas~ the mere fact th~

plaintiff has admitted he agreed to furni~h funds to Weisz does

not in any way mean he agreed to fund a down payment pursuant to

an assigmnent agreement between Weisz andi Hagler. While the

original complaint does state the funds were provided as a down

payment for defendant 960 Franklin LLC thp.t allegation does not

mention the. assignment agreeinerft at all. : Thus, the nature of the

allegation contai.ne.d in the original complaint is vague .and

hardly support~ a conclusory determination Kahah made an

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admission regarding all the obligations within the assignment

agreement. Likewise, no conclusive proof! cart be drawn from ;

Kahan's testimony in the action between W$isz and Kahan. First,

the assignment agreement was never mentioned within Kahan's

testimony. Thus, the absence of a:ny testi:imony about the

assignment agreement is not an admission Kahan knew it existed. .. . . .. . . !

More importantly, there, is no evidence Kahan conceded Weisz did nothing wrong. Indeed, in Kahart'S motion! seeking summary

judgement dismissing that; lawsuit Kahan states that following the

deposit he made to the escro,w agent "Weis:z secretly entered into

an assignment agreement which riot ortly provided for this time of the essence provision but additionally that the Venture's contract deposit-Kahan's contract depositl...would be forfeited if

the Venture failed to raise the funds to purchase the option

which the Assignors held ... Weisz never to~d his co-Venturer (to

whom he owed a solemn fiduciary ;obligation) about this Agreement

(He explained at his EBT simply that Kahap never asked! someone who owed his partner a fiduciary obligation)" (Memorandum of Law,

page 7 [NYSCEF Doc. No. 37 of Index Numbe~ 524709/20231). Clearly, Kahan harbors beliefs about Weis:z' s ni.i s representations.

Next, Hagler argues Kahan(s belief a~ further contract would

.be entered into between the seller arid Ka~an/Weisz must be rej.ect.ed as patently absurd. Those argnm~nts are based upqn Kahan' s affidavit wherein he states that he gave funds to We.isz

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(by wiring an escrow agent) and that those funds "would be

released from the escrow account only with my prior

authorization, and subject to the terms qf a contract acceptable

to my lawyers" (see, Affirmation of Baim !Kahan, '![8 [NYSCEF Doc.

No. 211]). The speculation that Kahan aqted with ''no reason." is

surely an insufficient basis upon which to conclude there are no

questions of fact. It is true that no c9ntract was ever presented to Kahan for the purchase of ttie properties. However,

the absence of any contract is not evidence, and surely not conclusive evidence, that Kahan was awar~ of the Hagler-Weisz

assignment agreement. The defendant assumes that Kaha.n must have

known about the assignment agreement. There is no evidence, other than innuendo, that :substantiates tihat argument.

Thus, as noted, Hagler assumes, without any proof, that

Kahan was aware of the assignment agreem~nt and that by wiring funds to Weisz he became bbund by all the terms of the agreement.

In truth, Hagler' s argument rests on the :fact that Kahan must have known of the assignment agreement because otherwise he

simply foolishly gave Weisz such large sums without knowing precisely how the money was being utilized. While that is certainly a reasonable opinion, it is not irrefutable proof.

Likewise, a: litigant cannot secure sumina~y judgement by arguing the other party's position is so outlandish that no jury could

believe it i Thus, Hagler insists that 1'rio reasonable jury could

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find that Kahan was mistaken about the material terms of Weisz's

agreement governing the funds he wired for the Weisz Entity" ;

(see, Memorandum of Law, page 14 [NYSCEF poc. No. 269]). Summary

judgement is not based upon such speculat~ve arguments. The mere

fact one party really thinks the other paittY is being untruthful

or one party avers the other party cannotj be truthful, no matter

how insistent, are not grounds to award spmmary judgement.

In additi-on:, all of Hagler' s arguments att:e:mpting to connect

Kall.an to knowledge of the assignment agreement i-s specious.

According to Hagler, the entire nature of: the transaction was

based upon and rooted in the assignment agreement. The

assignment agreement was the crux and central feature of thE= entire transaction. Yet, there is rio writing cir mention cif it to

Kahan at all. Hagler's repeated attempts: to draw upon

circumstantial evidence, allegations of K;al1an' s ridiculous

positions and insinuation, all to connect Kahan to the assign.merit

agreement, demonstrate there is no obviou!s and direct evidence of such knowledge. Surely the email sent by] Shia Weisz, which i t is

arguec:l established a "contract" between W;eisz and Kahan should

have mentioned this most critical and crulcial fact. Indeed,

could there have- been a complet~ meeting bf the minds without

that cruc.ial informa:tion? Tfle complete a:bsence of any evidence

of the existence of the. assignment agreerrient only raises questions of fact whether :E

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without ahy sufficient proof eliminating 6,:11 questions of fact

linking Kahan to the assignment agreement! and thus to all of ;

Weisz's transactions, summary judgement c~nnot possibly be

appropriate.

Moreover, regarding Kahan's statemen;ts he anticipated a

contract of sale to be negotiated, there µ.s no conclusive

evidence presented that Kahan never beliep:ed a contract would be

negotiated. In this vein, almost all aff1davits (or

affirmations') are self serving·. That does not affect their

admissibility, but rather their weight (St. Pierre v. Dyer, 208

F3d 394 [2d Cir. 2000]). More importantly, the defendant's

central argument in this regard is that the plaintiff is simply

not credible ari.d nothing he says can raise que·stiohS of fact and

surely his assertions are insufficient to: award summary judgement

in his £avor. Hb0ever, the court, at thi~ stage, canhot make

credibility determinations. As the court' noted in Payne v.

Pauley, 337 F3d 7 67 [7 th Cir. 2003] seekir~g to dismiss affidavits

cin the grounds of credibility, such action leads the court to

''dangerous territory, and we have warned ):)efore of falling for

the trap of weighing conflicting evidence: during a summary

judgment proceeding" {id). Thus, the court cannot "denigrate a

plaintiff's. evidence when deciding whetheF a. material dispute

requires tria:1" (Peterson v. Connecticut Light and Power Company,.

2014 WL 2615363 [District of Connecticut 2014]). Hagler argue.s

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that Kahan's affirmation is "absurd since! Weisz's rights derived

only through the Assignment Agreement" (s'.ee, Memorandum of Law,

page 22 [NYSCEF Doc. No. 269]) . However, i that circular argument

fails to appreciate that if Kahan was una~are of the assignment

agreement he was also unaware that Weisz had entered into such

agreement. Hagler further urges the cour)t not "to assume the

truth of Kahan's unsubstantiated assertio:µs" (see, Memorandum of

Law, Footnote 8 [NYSCEF Doc. No. 269]). Of course, as noted, on a motion for summary judgement the court :Cannot assume the truth of any assertions, that is the role of th~ :jury. Hagler 1 s

repeated and impassioned assertions tha.t: it is impossitile for

Kahan not to .have known a.bout the assignment agreement is, at its

core, a credibility argument.. As noted, the court cannot make

such credibility determinations. Moreover, Hagler is left with

no choice but to resort to the·se arguments since, as noted, there

is no direct evidence at all, Kahan was aware of the assignment

agreement. Ih any ~vent, it is cl~ar tha~ factual disputes in

this regard exist.

Further, Hagler maintains that Shiaw:eisz the son of Chesky

Weisz submitted an affidavit and confirmed tha:t Kaha.n was fully

aware Of the assignment agreement and consented to its terms.

Additionally, We,isz also has submitted af!fidavits qonfirrtting ' Kahan' s knowledge of the. assignment a9ree~ent. While those

affidavits and testimonies are .relevant and surely rais:e

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questions of fact, they are not conclusive proof sufficient to award summary judgement. By contra-st, Kahan's affidavit states ;

that "I was not a party to the Assignmentj Agreement or the :51%

Assignment Agreement or in fact any other; agreement or

arrangement Hagler bad with anyone or any entity, and was, at the

timE::J completely in the dark a:baut the de;al Hagler apparently had

struck with Weisz--,a deal to steal $4.5 mi!llion from me" (see,

Affirmation of Haim Kahan; '][17 dated October 1, 2024 [NYSCEF Doc.

No. 211]). Again, in another affirmation Kahan stated regarding

the assignment agreement that "I had . no idea l this . document . . . .

existed, was never a party to it, and it !cannot form the basis of

any surrender of my rights to my awn mone;y, which I believed at

the time was safely held in the Abrams Fenstermani LLP attorney

Trust Account, where I wired iti' (see, Af;firmation of Haim Kahan,

'][38 dated December 1, 2023 [NYSCEF Doc. N:o. 228] ) . Thus, the

affirmations of Chesky and Shia Weisz con'flict with the a,ffidavit

of Kahan. It is well settled that when c:onflicting affidavits are presented then summary judgement canhOt be granted (Lakeview

Development at CarmeL LLC v. New York cfty Dept, of

Environmental Protection, 139 AD3d 1016, :30 NYS3d 844 [2d Dept.,

2016]) ,

Ne'xt, concerning the email sent by s!hia Weisz which Hagler

alleges constitute.s a partners.hip agreeme;nt or a contract between

Weisz and Kahan, notwithstanding credibil:ity arguments that have

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no place in a motion for summary judgement, the erttail, as noted,

never mentions Hagler or an assignment ag:'reement. Furthermore, ;

the other lawsuit between Weisz and Kahani does not conclusively

establish Kahan knew about the assignment agreement. First, not

only does the email not support knowledge: of the assignment

agreement; the email seems to contradict the assignment

agreement. The email requires Kahan and Weisz to raise an additional twenty million dollars togethEir. If Kahan knew the:

assignment agreement e:;{isted and was aware of .all its terms then

the email asserting that Weisz and Kahan :would somehow raise the

remaining twenty million dollars "together" makes no sense.

Moreover, the lawsuit between Weisz !and Kahan only raises

more questions than it answers. In that !lawsuit, Weisz sued

Kahan alleging Kahan faiJ,ed to abide by the terms of the email

agreement which created .a joint venture petween them. The

complaint reiterates that Kahan was required to furnish twenty-

five million dollars and the remaining b~enty million i:lollars would be. raised by them together, as noted. The complaint also

alleges that Kahan sought to engage in a lbuy-out of Weisz' s

interests arid furnished an additional twq million dollars but

never furnished the, final payment of a m:i,llion doll.a rs. Weisz

sued Kahan and se.eks damages in the arnoutjt of twenty .rniilion

dqliars for failing to furnish thc:1.t. amount pursuant to the ' agreement. Whi.le that c1aim may not directly conflict with

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Hagler's understanding of the transactions that were required to

take place, there are surely questions of fact whether Weisz made ;

two distinct promises, one to Kahan and ajnother to Hagler, Thus,

pursuant to the "contractu between Kahan jand Weisz, Kahan was

required to invest twenty million dollar.:,( Pursuant to the

assignment agreement between Hagler ancl Wieisz, Weisz was merely

required to invest ten million dollars. ]To be sure, if Kahan knew of the assignment agreement Kahan must have wondered why he

was being asked to invest twenty million dollars when only ten

million dollars was required to be furnished at the closing.

Thus, the email between Shia Weisz and Kahan compels a denial of

any summary judgement request and surely !raises questions of fact whether Kahan was aware of the assignment agreement.

Next, Hagler argues the parties WE=re; "sophisticated/', an

arbitrary label, thus Kahan was surely a~are of the assignment

a'greetn.ent. That argument is undermined by the nature of the

alleged contract enterE;d into between Kah:an and Weisz. The entire contract is in the form of an email from Weisz's son to Kahan. While the term ''sophisticated" may vary depending on the surrounding facts atrd circum:stances, thetie can be· little- doubt a ''contract;:, formed in this manner, regarding such a supstantial

transaction:, is quite amateurish. Indeetj, Kahan has a.ought to

dismiss the lawsuit Weisz filed against h.:i,m on the:se very

grounqs.

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Next, the exhibit that contains the copy of the assignment

agreement (Exhibit 15 [NYSCEF ooc. No. 249] contains the

agreement as part of an email from the escrowee agent to Weisz

and other partie-s but hot Kahan. Even i£i it is true that Kahan

was aware of the assignment agreement befpre he notified Hagler

of his involvement, it d9es not establish' Kahan was aware of it when he depo.s_ited the funds, the only relfvant time frame that

cart support any summary determination. It is really irrelevant when Kahah discovered its existence and when he chose to inform

Hagler about his role in the down payment:. In any event, there

is no evidence Kahan knew about the assignment agreement when he

deposited the funds with the escrow agent:.

These arguments can a.11 be distilled! into one overarching

theses, namely that Kahan knew about the assignme-nt agreement and

must be bound by its terms. I t is true that if Kahan knew about

the agreement and consented to its terms thereby, then he could

have no greater rights than Weisz. Thus,! the default by Weisz

would necessarily devolve upon Kahan as well and Kahan would have

no claims against Hagler. Kahi::l.D does notj really dispute this

point. Kahan presents two arguments in .r:esponse and in support

of summary judgement in his favor.

First, Kahan argues thc1. t "without pr;iv i ty of contra ct, Def.endants have· no ba.sis what.soever to bi;nd Mr. Kahan to the terms of an Assignment Agreemen:t to which; he w~s not a party, or

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subject him to its terms, including the ";Liquidated damages"

clause that purportedly entitled Defendants to keep Mr. Kahan' s

$4.5 million" (see, Memorandum in Reply, page 6 [NYSCEF Doc. No,

282]). Thi.is, Kahan insists there is no ejvidence presented that

he knew about the assignment agreement anp. has produced affirmations asserting as much. Thus, SU\Tlffiary judgement must be

awarded in his favor. However, whether Kfhan knew about the

assignment agreement is a factual dispute! as the court has

exh 9 ustively demonstrateq.

Kahan also c1rgues that no contract eyen existed between him and Weisz. He argues that the email sent which is the basis of

µny agreement between the two of them is insufficient to create

obligations flowing between them. While that is the subject Of

the other lawsuit, for purposes of this litigation, it is

sufficient to note that there is no question that some form of

agreement was entered into between Kahan and Weisz. Whether it

has all the requiretuents to satisfy the e!],ements of a joint

venture is beyond the scope of these moti:ons. The critical, and

in fact, undisputed reality, is that Kaha:h and Weisz entered into

sotne sort of arrangement, however that may be defined. Whether

the assignment agreement entered into bet,ween Weisz and Hagler . '

can he. imputed to Kahan remains. a factual!' question. '

Conse:qµently, the court c;annot grant a1}y party summary j udgernent, Therefore, the motions seekir\g sti.rr\rnary jbdgerilent are

22·

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hereby denied. Turning to the motion seeking discovery, in light of the

above, the only discovery that is of any ,relevance is any information :concerning Kahan's knowledge of the existence of the assignment agreement. No other information is relevant at all.

Thus; the plaintiff must furnish any discovery in its possession,

that has not yet been furnished, regarding Kahan's knowledge

concerning the assignment agreement. In this regard, the

plaintiff shall submit an affirma-tion, within thirty days of

receipt of this order, that ail discovery:pertaining to his knowledge of the assignment agreement has;already been furnished

and ~fter a diligent search there is no f9rther infor~atioh that

must be prodm::ed.

Thus, the motion seeking to compel aITly further discovery is

granted to this extent.

so ordered. ENTER:

DATED: January 6, 2025 Bt'oo klyrt N . Y. Hon. Leon Rµchelstri'in JSC

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